Citation Nr: 1132996
Decision Date: 09/07/11 Archive Date: 09/15/11
DOCKET NO. 07-06 372A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of a surgical procedure performed at a VA Medical Center (VAMC) on February 9, 2005, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. A. Kennerly, Counsel
INTRODUCTION
The appellant served on active duty from August 1964 to April 1969 and from January 1971 to April 1974.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Decatur, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The appellant submitted a notice of disagreement with this determination in July 2006, and timely perfected his appeal in March 2007.
The Board notes that jurisdiction of this claim was subsequently transferred from the Decatur, Georgia, RO to the St. Petersburg, Florida, RO in July 2006, when the appellant relocated.
In November 2008, the appellant testified before the undersigned Veterans Law Judge during a Travel Board hearing. A transcript of that proceeding has been prepared and incorporated into the evidence of record.
In April 2009, the Board requested an outside medical opinion (OMO) with regard to the appellant's claim. The Board received the OMO in August 2009. Subsequently, the appellant submitted a statement from his VA physician in September 2009. In the September 2009 Informal Brief Presentation prepared by the appellant's representative, it was noted that "[t]here is no waiver of Regional Office consideration, neither implied nor intended." Accordingly, in October 2009, the Board remanded this claim back to the RO for review and adjudication. Such development having been accomplished, the claim has been returned to the Board for adjudication.
FINDING OF FACT
A preponderance of the medical evidence of record supports a conclusion that the appellant's claimed residuals of his February 9, 2005 surgery, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder, were not caused or aggravated by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, nor was such the result of an event not reasonably foreseeable.
CONCLUSION OF LAW
The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of a surgical procedure performed at a VAMC on February 9, 2005, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2010); 38 C.F.R. § 3.361 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant seeks compensation pursuant to 38 U.S.C. § 1151 for the residuals of a surgical procedure performed at a VA Medical Center (VAMC) on February 9, 2005, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder.
The Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered.
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case.
Standard of Review
After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the appellant and the appellant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of this notice, VA is to specifically inform the appellant and the appellant's representative, if any, of which portion, if any, of the evidence is to be provided by the appellant and which part, if any, VA will attempt to obtain on behalf of the appellant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal.
The appellant was informed of the relevant law and regulations pertaining to his § 1151 claim in a letter from the RO dated in July 2005. The RO informed the appellant of VA's duty to assist him in the development of his claim in the July 2005 letter. Specifically, the letter stated that VA would assist the appellant in obtaining any relevant records from any Federal agency, including the military, VAMCs, or the Social Security Administration. With respect to private treatment records, the letter informed the appellant that VA would make reasonable efforts to obtain such records. The letter also indicated that a medical examination or opinion would be provided if necessary to make a decision on the appellant's claim.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
The appellant was provided with Dingess notice in the January 2007 statement of the case. Although January 2007 notice was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since he was subsequently provided adequate notice. He was provided ample time to respond with additional argument and evidence and the claim was readjudicated in a supplemental statement of the case in December 2010. See Prickett v. Nicholson, 20 Vet. App. 370 (2006).
Accordingly, the appellant received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. Moreover, in this case, elements (1) and (2) are undisputed, and element (3) is irrelevant. Additionally, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of benefits pursuant to 38 U.S.C.A. § 1151. In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. Because, as will be detailed below, the Board is denying the appellant's claim, element (4) and (5) remain moot.
Because there is no indication that there exists any evidence, which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran].
Duty to Assist
In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010).
In the instant case, the Board finds reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating the claim. The evidence of record includes the appellant's service treatment records and VAMC treatment records.
Additionally, the appellant was provided with a VA medical opinion in August 2010 and an OMO in August 2009. The VA medical opinion and the OMO report reflect that the examiners thoroughly reviewed the appellant's past medical history, documented his current medical conditions, reviewed pertinent medical research, and rendered appropriate opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the VA medical opinion and OMO are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The appellant and his representative have not contended otherwise.
The Board also finds there has been substantial compliance with its October 2009 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the Remand and Rating Development Team (RRDT) reviewed the newly submitted evidence to the claims file and readjudicated the appellant's claim in a December 2010 supplemental statement of the case. Based on the foregoing, the Board finds that the RRDT substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010).
In summary, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this issue has been consistent with said provisions.
The Board also observes that all due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The appellant has retained the services of a representative, who has presented argument on his behalf. Further, the appellant provided testimony before the undersigned Veterans Law Judge in November 2008.
Accordingly, the Board will proceed to a decision as to the issue on appeal.
II. The Merits of the Claim
Relevant Law and Regulations
Statutory Law
In pertinent part, 38 U.S.C.A. § 1151 reads as follows:
"(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and -
"(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable."
VA Regulations
Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C. § 1151 filed on or after October 1, 1997 [such as this case, in which the appellant's § 1151 claim was filed in June 2005] were amended. See 69 Fed. Reg. 46,426 (Aug. 3 2004) [codified as amended at 38 C.F.R. § 3.361]. Those regulations largely implemented the provisions of 38 U.S.C.A. § 1151.
(i.) Additional disability
In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. See 38 C.F.R. § 3.361(b) (2010). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1) (2010).
Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2) (2010).
(ii.) Carelessness, negligence, etc.
To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1) (2010).
(iii.) Foreseeability
Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d) (2010).
Factual Background
The Board believes that a brief factual background is appropriate.
Prior to February 9, 2005, the appellant had a five year history of progressive quadraparesis with spasticity, and magnetic resonance imaging findings suggesting cervical spondylosis at the L5-6 and C6-7 disc spaces with continued compression posterior to the C6 vertebral body consistent with possible ossification of the posterior longitudinal ligament. He was documented to have bilateral hand weakness since 2000. In approximately August 2004, the appellant was admitted to the Gainesville, Florida, VAMC for evaluation of his bilateral lower extremity edema. At that time, he was noted to have significant atrophy bilaterally and significant weakness in the bilateral upper extremities. Concern was raised that the appellant may have been suffering from a possible lesion of his foreman magnum, resulting in a Bell's cruciate palsy. He was subsequently diagnosed with herniated nucleus pulposus of C5-6 and C6-7, with significant posterior osteophytes and some mild thoracic signal changes, and cervical myelopathy.
Thereafter, the appellant was scheduled for a cervical corpectomy on February 9, 2005. He tolerated the procedure well but was noted to have some persistent or perhaps mildly increased weakness in his left intrinsic hand muscles. The appellant underwent a computed axial tomography scan of the cervical spine on post-operative day one, which revealed evidence of residual right paracentral posterior osteophytes at C-7. Thereafter, the appellant had a series of falls while attempting to transfer between his bed and wheelchair. He was subsequently transferred to the Tampa VAMC Spine Cord Injury Rehabilitation Facility, where he was an in-patient until May 13, 2005. The appellant was hospitalized again from November 9, 2006 through December 8, 2006, for intractable pain associated with quadriplegia, incomplete, and severe spasticity, neurogenic bowel and bladder, and chronic pain.
Analysis
The appellant is seeking compensation under the provisions of 38 U.S.C. § 1151 for the residuals of a surgical procedure performed at a VAMC on February 9, 2005, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder.
As was discussed in the law and regulations section above, in order to substantiate a claim under 38 U.S.C. § 1151, the evidence must show that VA treatment caused additional disability, and that such was the result of either negligence or carelessness on the part of VA or an event not reasonably foreseeable.
The question of whether the appellant has additional disabilities and whether such are related to his February 9, 2005, surgery is essentially medical in nature, as are the matters of negligence, etc, and foreseeability. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
With respect to these questions, the OMO, drafted in August 2009, stated that the neurosurgical note on the first post-operative day mentioned that the appellant complained of increased weakness and clumsiness of his left hand. The neurologic examination at the time showed that his right intrinsic hand muscles were 4/5 and the left intrinsic hand muscles were 3/5. This examination was at least stable, in comparison to the pre-operative examination from January 26, 2005, where the right hand intrinsics were 2/5 and the left hand intrinsics were 3/5. The OMO physician found that there was no worsening post-operatively.
A post-operative computed tomography scan of the cervical spine was performed on the first post-operative day, which revealed some residual posterior osteophyte at C7. There was no evidence of hematoma. The bone graft and hardware were noted to be in adequate position. The physician ordered an electromyograph and nerve conduction study to evaluate the appellant's complaint of worsened hand weakness, however, the appellant was unable to complete the study. With regard to the appellant's post-operative neurologic picture, the OMO physician concluded that there were not any major, significant changes from the pre-operative to post-operative stage, as documented in the appellant's claims file. See OMO Report, August 17, 2009.
Conversely, a VA medical opinion from the appellant's treating physician was submitted in September 2009. The physician reported that in addition to the appellant's persistent severe paralysis, "he has other consequences of his spinal cord damage, including severe muscle spasticity, joint contractures, neurogenic bladder and bowel, and intractable pain." See VA Treating Physician Statement, September 3, 2009.
Affording the appellant the full benefit of the doubt, in conjunction with the VAMC hospitalization reports dated in November 2006 and December 2006, the Board finds that the report of the September 2009 VA physician appears most consistent with contemporaneous treatment records, which document the appellant's complaints following the initial surgery. The Board thus concludes that additional disabilities, namely deep vein thrombosis, autonomic dysreflexia, severe muscle spasticity, joint contractures, neurogenic bladder and bowel, and intractable pain, were incurred as a result of the February 9, 2005 surgery.
The Board must now determine whether such additional disabilities are due to carelessness, negligence, etc. on the part of VA; or whether such additional disabilities are the result of an event, which was not reasonably foreseeable.
In September 2009, the appellant's treating VA physician opined that the consequence of the surgical event of February 9, 2005, was one that was not reasonably foreseeable, and that as a result, the appellant is left with a catastrophic disability. See VA Treating Physician Statement, September 3, 2009. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the appellant's treating physician failed to provide any reasons or bases as to why he concluded that the appellant's post-operative disabilities were not foreseeable. Without supporting rationale, the Board finds this to be a bare conclusion and to be of little probative value.
The only remaining evidence in support of the appellant's claim consists of his lay statements. The appellant as a lay person is competent to offer an opinion on a simple medical condition. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer)). Competency is a question of fact, which is to be addressed by the Board. See Jandreau at 1377.
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (2010); Layno v. Brown, 6 Vet. App. 465, 69 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.)
Whether the appellant's current residuals are the result of carelessness, negligence, etc., or unforeseeable, cannot be determined by the appellant based on his perceived observations. See 38 C.F.R. § 3.159 (2010). Further, it is not argued or shown that the appellant is otherwise qualified through specialized education, training, or experience in health care to offer an opinion on fault on the part of VA regarding the surgery or on the standard of care of a reasonable health care provider, which are factors in determining entitlement to compensation benefits under 38 U.S.C.A. § 1151.
For these reasons, the Board rejects the appellant's lay opinion as competent evidence to substantiate the claim on the question of fault of the part of VA.
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. See 38 C.F.R. § 3.159.
In August 2009, the OMO physician stated that the pre-operative, intra-operative, and post-operative care provided to the appellant was appropriate and met all the standards for treatment of a patient with cervical myelopathy. "There was certainly no evidence of carelessness, negligence, error in judgment, or any lack of skill in evaluating and treating this patient medically and in performing the appropriate surgery." See OMO Report, August 17, 2009. The OMO physician further stated that when a patient presents with a cervical myelopathy and neurosurgeons determine that a patient is a candidate for surgery, it is carefully explained to the patient that the idea of surgical intervention is to prevent further worsening of the neurologic picture and that improvement cannot be guaranteed from the surgery. Id.
It was also noted that when describing the surgery and risks to a patient, it is generally stated that, in patients undergoing surgery for cervical myelopathy, 50 percent experience no change in symptomatology and of the remaining 50 percent, 25 percent may have some improvement and half (25 percent) can expect to be worse with surgery. "This is a known and expected course and cannot be predicted from the pre-operative exam or studies." Id. The OMO physician concluded that the appellant's post-operative course was definitely predictable, foreseeable and expected. The post-operative course can be progressive worsening or improvement. It was further stated that surgery for this disease is performed not for improvement, but with the idea of stopping the progression of the disease. Id.
In August 2010, VA obtained a second medical opinion to reconcile the aforementioned medical opinions. The VA examiner referenced the American Association of Neurological Surgeons literature, which noted that although complications were fairly rare, as with any surgery, the following risks could be associated with cervical spine surgery:
* Infection
* Excessive bleeding
* Adverse reaction to anesthesia
* Chronic neck or arm pain
* Inadequate symptom relief
* Damage to the nerves and nerve roots
* Damage to the spinal cord (about 1 in 10,000)
* Damage to the esophagus, carotid artery or vocal cords
* Fusion that does not heal
* Instrumentation breakage and/or failure
* Persistent swallowing or speech disturbance
* Leakage of cerebral spinal fluid
The VA examiner also noted that there was no consensus regarding the indications and timing for surgical treatment of cervical spondylotic myelopathy. A number of different surgical procedures are used to treat cervical spondylotic myelopathy, but it is not known which type of surgical procedure is best. The VA examiner stated that overall, 50 to 80 percent of patients are reported to be improved after surgery, while five to 30 percent are worse or subsequently deteriorate. Following a thorough review of the appellant's claims file and the relevant medical literature, the VA examiner opined that the appellant's additional disability following the February 9, 2005, neck surgery was an unfortunate, foreseeable outcome of this kind of surgery, as indicated in the medical literature. See VA Medical Opinion, August 20, 2010.
As discussed, a VA examiner and OMO physician have concluded that while there is additional disability, it is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or due to an event not reasonably foreseeable. The VA and OMO examiners provided reasoned opinions based on complete review of the record. In assigning high probative value to these opinions, the Board notes that the examiners had the claims file for review, specifically discussed evidence contained in the claims file, and referenced the relevant medical literature. There is no indication that the VA and OMO examiners were not fully aware of the appellant's past medical history or that any relevant facts were misstated. Therefore, the Board finds the VA and OMO examiners' opinions to be of great probative value. The appellant has produced no competent evidence to counter these two opinions.
Having carefully considered the evidence pertaining to the appellant's claim, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151. Simply put, the greater weight of probative evidence is against finding that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable. The claim fails on this basis.
In summary, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities resulting from the February 9, 2005 surgery. The benefit sought on appeal is accordingly denied.
Additional Comment
The Board wishes to make it clear that it is well aware of the unfortunate consequences of the appellant's surgery. There appears to be no question that additional disability resulted from the VA surgery. However, under the present law the Board cannot grant the benefits sought. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As explained above, the Board has decided this case based on the law and regulations, as well as the medial evidence of record.
The Board adds that the current version of 38 U.S.C. § 1151 was enacted effective October 1, 1997, with the precise purpose of narrowing the award of benefits to exclude situations such as the one presented in this case. See section 422(a) of PL 104-204. The purpose of the 1997 amendment was, in effect, to overrule the decision of the United States Supreme Court (Supreme Court) in Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994). In that case, the Supreme Court determined that the statutory language in the previous version of 38 U.S.C. § 1151 simply required a causal connection between the VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. That version of § 1151 no longer exists.
In short, though the Board certainly empathizes with the appellant's current condition, it is bound by the law in this case and cannot grant the benefits sought. See 38 U.S.C.A. § 7104(c) (West 2002).
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ORDER
Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of a surgical procedure performed at a VAMC on February 9, 2005, to include progressive quadraparesis, deep vein thrombosis, autonomic dysreflexia, and neurogenic bowel and bladder, is denied.
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J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs